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CAROLINE B. KENNARD v. WELDED TANK & CONSTRUCTION CO. INC. (10/29/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43312 <http://www.versuslaw.com>; 253 N.E.2d 197; 25 N.Y.2d 324 decided: October 29, 1969. CAROLINE B. KENNARD, AS ADMINISTRATRIX OF THE ESTATE OF LEONARD E. COKER, DECEASED, RESPONDENT,v.WELDED TANK & CONSTRUCTION CO. INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT. COLORADO FUEL & IRON CO., INC., THIRD-PARTY DEFENDANT-RESPONDENT. (ACTION NO. 1.) (AND THREE OTHER ACTIONS.) Kennard v. Welded Tank & Constr. Co., 27 A.D.2d 578, affirmed. Counsel Saul I. Weinstein for plaintiff-appellant in Action No. 1. Lewis F. X. Cotignola, Harry W. Robinson and Abraham Brinn for plaintiff-appellant in Action No. 3. Counsel Arthur W. Block for defendant-appellant in Actions Nos. 1, 2 and 4. Reginald S. Marshall for defendant-respondent. Chief Judge Fuld and Judges Scileppi and Gibson concur with Judge Bergan; Judge Breitel dissents and votes to reverse in a separate opinion in which Judges Burke and Jasen concur. Author: Bergan


Kennard v. Welded Tank & Constr. Co., 27 A.D.2d 578, affirmed.

Chief Judge Fuld and Judges Scileppi and Gibson concur with Judge Bergan; Judge Breitel dissents and votes to reverse in a separate opinion in which Judges Burke and Jasen concur.

Author: Bergan

 These four actions arising from an accident February 24, 1954, now almost 16 years ago, were tried together in October and November, 1960. General verdicts were returned in favor of two plaintiffs, Edward T. Karran, since deceased, and C. W. Lauman & Co., who in direct actions sued Colorado Fuel & Iron Co. for negligence.

The other claims against Colorado were third-party actions by Welded Tank & Construction Co. Inc. Special verdicts were returned at the same time as the general verdicts on interrogatories propounded by the court to aid in its own determination of the third-party claims against Colorado. These special verdicts were to the effect that Colorado was not negligent.

The general verdicts and the special verdicts were inconsistent on their face. Colorado could not be held negligent as a predicate for the general verdicts and also not negligent by the special verdicts in the same jury submission on the same facts at the same trial.

At Trial Term the court decided in a careful opinion (26 Misc. 2d 1000) that under the statute which in 1960 governed the practice (Civ. Prac. Act, § 459) the general verdicts must be conformed to the special verdicts and accordingly judgment was directed in favor of Colorado dismissing the two direct actions against it.

The court's legal power to have conformed the inconsistent general verdicts to the special verdicts is undoubted and is not disputed. The language of the practice statute was then cast in mandatory and directory terms: "Where a special finding is inconsistent with a general verdict, the former controls the latter, and the court must render judgment accordingly." (Civ. Prac. Act, § 459, last sentence.)

The main thrust of appellants' argument is that notwithstanding the terms of the statute, the court retained a discretionary control over the verdicts and the failure to exercise the discretion because the court felt bound by the statutory language was a legal error which now requires reversal.

This discretion, so it is further argued, should have been exercised in a particular direction by resubmission of the case before the jury was discharged, in response to plaintiffs' request; or by ordering a new trial after the jury was discharged in response to further motions addressed to the verdicts.

But if the significant error is, as appellants suggest, a failure to exercise a discretion vested in the Supreme Court notwithstanding the language of the statute, the usual legal remedy as far as this court's jurisdiction goes, would be to remit the case to the Trial Term with a direction to exercise the discretion.

The remand would not take the form of advising the Supreme Court how to exercise that discretion. Moreover it is clear from the record, as it will be shown, that the Trial Term was of opinion the special verdicts were right on the merits, and if the case were now remitted the discretion would be exercised with the same result: to conform the general to the special verdicts.

The statutory provision relating to such inconsistent verdicts has a very long history, as Judge Crouch observed in his concurrence in Bergman v. Scottish Union & Nat. Ins. Co. (264 N. Y. 205, 214). A reasonable answer to the problem of duty and discretion is that if the Trial Judge be of opinion that the special verdict is in accordance with the weight of evidence, and with the justice of the case, and, therefore, if he let it stand, he must conform the general verdict to the special one. Under CPLR 4111 the mandatory statutory direction for conformity extending back to 1848 (Code of Pro., § 217, renum. as § 262 by L. 1849, ch. 438; Code Civ. Pro., § 1188) has now been eliminated and the problem in this case will not recur.

No case has held, under the former practice, that if the court was soundly of opinion within its legal powers that the special verdict was right and consistent with evidence, it was required to send the jury back or to order a new trial.

In Bergman v. Scottish Union & Nat. Ins. Co. (supra), on which appellants rely, there was no general verdict and the trial court attempted to resolve a kind of controversy which called for a general verdict by submitting special questions and, on the basis of answers returned, directing a general verdict. ...


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